Thursday, 31 July 2003

Although it took 3 tries to get summary judgment on its laches defense, Caterpillar was able to have it upheld on appeal. Smith v. Caterpillar, Inc. (7th Cir. 7/31/03). The Court noted not only faded memories and lost witnesses, but the inevitable destruction of documents as well as the increase of exposure in back pay as the sort of prejudice that coupled with inexcusable delay was sufficient for laches. The delay was occasioned by plaintiff fully pursuing her claim of discrimination through the Illinois administrative process and then dropping it two days before a hearing to pursue her Title VII claim. Even then it took her over a year to get a right to sue letter from the EEOC. Her initial charge was filed on March 20, 1991, her law suit on August 17, 1999. From there, after the 3 summary judgment attempts, the appeal was argued on May 30, 2002 and decided more than a year later. All in all quite a judicial ride for some one who worked only as a probationary employee for 60 days. Any wonder why employers question the credibility, not to mention the cost, of the system?

A former Baylor employee complained that his termination was because he had opposed gender discrimination against one of his colleagues. Following a 10 day trial the court submitted a retaliation question asking only if his opposition to gender discrimination had been a motivating factor in his termination. The jury answered "no". He appealed arguing that the court should also have submitted another element, that his termination was because he had "testified, assisted or participated in any manner in an investigation, proceeding or hearing." Although he had not done so, he argued that Texas should recognize a theory of "perceived" participation as recognized in Fogleman v. Mercy Hosp., Inc., 283 F.3d 561 (3rd Cir.), cert. denied (2002). Under that theory, if the employer terminated him in part because it perceived" he had participated that would be illegal under the TCHRA. In Salay v. Baylor University (Tx. App. - Waco 7/23/03) the Court of Appeals wisely chose not to adopt that rule, noting no other Texas court had done so.

Thanks to a Texas Lawyer email for picking this case up. While I routinely check the Texas Courts of Appeal, the Waco court is the only one that does not regularly post its decisions on its website.

Wednesday, 30 July 2003

Noting that it was perhaps opening a wide door, nevertheless the 9th Circuit finds that a cause of action under Section 503(b) of the ADA which prohibits interference with the exercise of rights under the ADA is distinct from, and broader than a cause of action for retaliation under Section 503(a). Brown v. City of Tucson, (9th Cir. 7/30/03) [pdf]. Although summary judgment for the City was upheld on the retaliation claim under the burden shifting analysis of McDonnell-Douglas, the same analysis did not apply to the interference claim. Nor does it equate to a hostile environment claim, which would require a finding of an adverse employment action. The most applicable standard is that found under the Fair Housing Act, which has an identical provision. Unfortunately, that standard does not give much guidance for its application under the ADA. At a minimum however, where as here there were allegations of threats for exercising her rights under the ADA, in this case being threatened with adverse action if she did not give up the accommodation for her disability, it is sufficient to survive summary judgment under Section 503(b). It would be a surprise if the Supreme Court were not given a chance to shut this door that the 9th Circuit may well have opened.

When plaintiff made his prima facie case of age discrimination in failing to rehire him after he had been riffed, the burden shifted to the employer to provide a legitimate explanation. Unfortunately, it originally took the position that it had a policy of not rehiring drivers who had been let go in a reduction force in both an administrative proceeding, their answers to discovery and in their initial brief on summary judgment. On their reply brief, they introduced a second rationale, that they only hired from union referrals. And just to make matters worse, at oral argument they tried to make a third argument. The conflict between the different rationales was enough for the court to feel the their justification was "fishy" and reverse the summary judgment below. Zaccagnini v. Chas. Levy Circulating Co. (7th Cir. 7/29/03) [pdf].

Today's suit is against the LA Clipper's owner Donald Sterling. According to the AP story Sumner Davenport, a former property supervisor at his Beverly Hills Properties accused him of "unwanted and offensive physical conduct" that included hugging, kissing and touching her chest. Yesterday the sexual harassment suit of the day was by the former VP of Human Resources for the Atlanta Falcons, Carol Faubert, who complained that team owner, Arthur Blank, condoned a work climate in which female employees were treated as "sex objects." See ESPN's story here. It should be noted both were terminated employees, and although Sterling was unavailable for comment the Falcons' position was clear: "This lawsuit was filed by a disgruntled former employee whose objective is obvious: to threaten public embarrassment as a means of extracting unwarranted personal gain," according to Susan Bass the Falcons Vice President for Community Relations.

Tuesday, 29 July 2003

Child labor laws are a serious matter, but when stories like Labor Officials Crackdown On Grandma's Helpers appear it can make people wonder where common sense went. According to the Chicago NBC affiliate, Illinois labor officials have said that two granddaughters who helped their grandmother out at her second hand store by sweeping the floor and occasionally washing the windows in return for candy, can't be paid, even in candy. Glad that those officials had their priorities straight.

Monday, 28 July 2003

Last Friday was the first anniversary of Sarbanes Oxley legislation, at least the day Congress passed it. S-O was a major rewrite of corporate governance laws, but also included significant employment law aspects. It was easy to forget the day of its passage since the corporate scandals have been crowded off the front page of the paper. According to the Chicago Tribune story the authors of the legislation are happy with progress but still believe that much work needs to be done to complete the job. We can celebrate the signing of the legislation this Wednesday.

Sunday, 27 July 2003

According to the Labor Policy Association in HR Policy News the vote on Health and Human Services appropriations has been put off until after the Senate's August recess. The Harkin amendment to the appropriations bill would effectively kill the proposed white collar regulations of the Department of Labor. You can anticipate a considerable amount of lobbying of wavering Senators during the month of August.

Whether or not a defendant can get summary judgment is at the heart of most of employment cases. Once summary judgment is defeated, a new calculus enters into the settlement discussions, the jury. The Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc., (U.S. 2000), was widely seen as making summary judgment more unlikely. It held that it was sufficient to defeat summary judgment if you could establish a prima facie case and had some evidence of pretext.

However, part of the decision gives courts wishing to grant or uphold summary judgment some room, and an opportunity to evaluate the evidence, even on summary judgment:

Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.

In Girten v. McRentals, Inc. (8th Cir. 7/25/03), the Court did as suggested in evaluating the proof of plaintiff's age case. Noting there was only a 9 year age difference between the plaintiff and the replacement (62 to 53) the Court concluded the prima facie case was weak, and that there was little in the way of evidence that the reason given for the termination was not truly believed, even if it may have been wrong. In short, after quoting the Reeves language above, the court upheld summary judgment holding, "Because the plaintiffs have not made a strong prima facie case and the evidence of pretext is virtually non-existent, no reasonable trier of fact could conclude that the defendant discriminated on the basis of age." One more summary judgment survival.

With two highly publicized events this past week, the city council member in New York and the shooting of three co-workers by a real estate sales agent, even closer in San Antonio, this article from the Oregon Bend Bulletin has a survey of how different companies plan to respond to the problem. On the day after the San Antonio shooting Dr. Dennis Davis, a friend, great speaker and expert on the workplace violence spoke at the TAB annual Employment Relations Symposium. One thing he found employers reluctant to do was get law enforcement involved in work places incidents where there was a threat or slight injury. Something he suggested should change.

Friday, 25 July 2003

Timely issue since I just spoke at the Texas Association of Business Employment Law conference this morning on drafting arbitration agreements. I could have thrown in today's decision in McMullen v. Meijer, Inc. ((6th Cir. 7/25/03) where the Circuit Court reversed the trial court's order compelling a termination dispute to arbitration. The employer's arbitration agreement let it pick a panel of five potential arbitrators (who had to meet certain restrictions) and then allowed the final choice by alternate striking. Too much control to ensure that the employee's rights would be sufficiently protected in the arbitration process.

Headline pretty well says it all, except to let you know that Local in this case means Los Angeles. The suit was brought under the California statute prohibiting discrimination on the basis of sexual orientation. The AP story is running on several sites, including the local NBC affiliate. First Million Dollar Verdict in some time.

That's the question former Brobeck employees would like to have answered. Their contention is that it is Morgan, Lewis which hired a number of Brobeck lawyers and continued to work on a number of Brobeck files. The lawyer representing the former Brobeck employee's who are seeking their 60 day notice pay under the WARN act is wondering about whether Morgan Lewis continued working on Brobeck files without getting consent from the clients, which would add weight to his argument that it is a continuing employer. Law.com has the story.

Thursday, 24 July 2003

Turning down an invitation to read the requirement that an employee must be prove he has been disciplined or discharged in order to make a prima facie case of religious discrimination, the court in Goldmeier v. Allstate Insurance(6th Cir. 7/24/03) upheld a summary judgment for Allstate because there had been no discharge or discipline. The Court also rejected that the employees had been constructively discharged when they quit 53 days before the policy they were complaining about went into effect.

Spurred by a highly publicized IBM internal communication, recent stories have highlighted the number of primarily high tech jobs being shipped offshore. Now an Information Weekstory considers the best way to deal with the human relations issues taking such action causes.

Hawthorne alleged that his employer required that he and his crew smell water samples for the presence of ammonia and when he refused to do so, he was terminated. In his opinion this created a Sabine Pilot cause of action, that the sole reason for his termination was the refusal to commit a criminal act. The company filed and won a traditional summary judgment. Unfortunately, it was reversed by the appellate court, and the Supreme Court refused to hear the case.

Back in the trial court, the company tried a second motion for summary judgment, this time using both the traditional and the still relatively new no-evidence summary judgment now permitted by the Texas Rules. The latter proved to be the key to success as the both the trial court and the appellate court found that Hawthorne had failed to offer any evidence that requiring the employees to smell the water samples was in any way linked to a criminal statute. Hawthorne v. Star Enterprise (Tx. App. - Amarillo 7/23/03). In addition to showing the value of the no evidence summary judgment procedure, this case shows how the different workloads in the various appellate courts of Texas can cause a matter to be shifted around the state. The lawsuit was filed in Beaumont, but the initial appeal went to Texarkana, and this most recent decision was by the Amarillo Court of Appeals. It could be that the final word comes from Ausint, but my guess is that the Supreme Court will decline a second time to review the case.

The Austin Court of Appeals establishes an important precedent for the Texas law of arbitration in finding that arbitrators are entitled to immunity from lawsuits similar to the immunity that judges have. The court found this broad based immunity is important to the arbitration process as a whole, which is in accord with the public policy of Texas. The need to decide this issue arose when Blue Cross challenged an arbitrator's failure to disclose his prior association with the counsel for one of the parties and sought to recover its attorneys fees from the arbitrator personally. (The court also questioned whether it was really an attempt to set aside the award.) Blue Cross v. Juneau (Tx. App - Austin 7/24/03). If this decision had gone the other way it would have caused havoc to employers wanting to resolve disputes through arbitration rather than litigation.

Wednesday, 23 July 2003

Chevron scored a landmark victory in the U.S. Supreme Court by validating the EEOC's regulation that direct threat includes a threat to the employee as well as to others, even though the ADA did not contain that specific language. Chevron v. Echazabal (U.S. 2002). They were less successful in convincing the 9th Circuit that their summary judgment granted on that basis should be upheld.

In today's decision in Echazabal v. Chevron (9th Cir. 7/23/03) [pdf] the Court found there were factual issues on whether Chevron made its decision “based on a reasonable medical judgment that relies on the most current medical

knowledge and/or on the best available objective evidence.” Chevron did convince one judge of the panel who filed a vigorous dissent, but unfortunately, must now start over in the trial court.

Emphasizing what my procedure professor said, "there's no cash register at the back of the court room," the judge who presided over the whistleblower claim of Thomas Dunn against Enterprise Rent A Car yesterday set aside the jury's verdict and entered judgment for Enterprise. According to the story in the St. Louis Post Dispatch the judge set aside the verdict because the plaintiff had not shown Enterprise violated any statutory prohibition. Plaintiff's counsel argued it only requires a good faith belief on the part of the employee to state a cause of action. Plaintiff will apparently get their chance to press that argument on appeal.

Tuesday, 22 July 2003

Today's decision in Palmer v. Pioneer Inn Associates, Ltd. (9th Cir. 7/22/03) [pdf] makes two interesting points. Plaintiff had applied for and was initially offered a job as a deli server, waitress and ultimately a supervisor, before being told that she could have none of the three because she was pregnant. The trial court granted summary judgment on the waitress and supervisor position because she could not establish a prima facie case under McDonnell-Douglas . She lost on the deli server position when the case went to trial because testimony by a management level chef was excluded as a sanction for plaintiff's counsel ex parte contact with him.

In the trial court's view, the chef was a 'represented party'under the ethics rule. The 9th Circuit, certified the question to the Nevada Supreme Court which in its opinion adopted a narrow view of management officials who are covered by the rule. The Nevada Supreme Court now uses the managing-speaking agent test, which requires that the individual be able to "bind" the company in a legal sense. Finding that the chef did not meet that test, the 9th Circuit ruled the exclusion of the chef's testimony as a sanction was improper and reversed the jury's finding of no liability on the deli server position.

The second interesting facet is the important distinction between direct and circumstantial evidence. The court reversed the summary judgment of the company on the waiter and supervisor position, finding that the plaintiff had not been required to make a prima facie case under McDonnell-Douglas since she had offered sufficient direct evidence. Her testimony that an agent of the restaurant told her that his boss had overruled his hiring of her because she was pregnant was sufficient to allow her case to go to the jury.

Circuit City which has become the poster child of arbitration enforcement litigation has suffered another hit in today's decision by the 9th Circuit. Circuit City Stores v. Mantor (9th Cir. 7/23/03) [pdf]. Deciding strictly under California state law, thus avoiding the question of whether or not Duffield would preclude the plaintiff's Title VII claims, the Court found even the revised arbitration agreement of Circuit City was both procedurally and substantively unconscionable and thus could not be enforced.

Although some of the items could be cured by revised drafting and the involvement of a neutral third party at an earlier stage, it seems that some of the conditions the court would impose for a valid agreement will be almost impossible to meet in the typical "arbitration as a condition of employment" case. It appears that the issue of arbitration of employment law disputes will remain a muddle in California for some time to come.

An interesting blog, Out-of-the-Box Lawyering has a comment and link to a 9th Circuit affirmation of an unusual sanction of $5,000 to the plaintiff for the pain and suffering caused by the embarrassmentt of having details of her sexual practices offered into evidence. An offer the Court held could only have been a knowing violation of Rule 412, which sets out strict procedural requirements before such testimony is proffered. The Court also awarded $5,000 as attorneys fees. Although no doubt the plaintiff's name will be recognized by those actually familiar with the case and the employer, she is fortunately spared further ignominy by the use of only her initials on the published appellate decision.

Both in technology and frequency, according to a special report in Business Week Online Ever-Sharper Eyes Watch You Work. The lead quote from an employee that has been engaged in such monitoring for one company says it all: "I will never look at certain employees the same way again."

In addition to the monetary settlement the company is also continuing a number of changes it had already begun to accommodate the hearing impaired. The Mercury News has the details of the settlement and the actions to be taken by UPS.

The quote often attributed in various forms to Henry Kissinger came to mind as I read this article from the Memphis Flyer, cleverly titled God and Woman at Rhodes, describing a recently filed complaint for sexual harassment by a former Rhodes faculty member. She claims not only was she denied tenure, but she was sexually harassed by her female superior in the religion department at Rhodes, which is apparently described in the detailed 22 page pleading as "a hotbed of liberalism, atheism, and feminism with a dash of lesbianism for good measure." Rhodes officials were, wisely no doubt, withholding comment.

The ability to communicate instantly is, as the article in Workforce.com, IM: It's Speedy And It Can Spell Trouble says, "insanely easy to use". But that ease of use, and the frequent misuse of it, adds up to another potential headache for employers.

Monday, 21 July 2003

In order to combat what it urged was erroneous reporting of hours worked by employers owned by one person or a married couple, the Trustees of various Teamster benefit plans created a special rule that if an owner or an owner's family members of a business owned by one person or a couple, worked even one hour in a month, the company must make a contribution as if the individual worked 40 hours per week, each week of the month. In LaBarbera v. J.D. Collyer Equipment Corp. (2nd Cir. 7/21/03) [pdf], the court affirmed the trial court's grant of summary judgment holding that the rule exceeded the Trustees' power under the collective bargaining agreement.

Although they may not be good at organizing, you have to credit organized labor's mass media communication skills. They have certainly taken the initiative in opposing the DOL's proposed changes to the regulations that deal with the white collar exemptions. Here was this weekend's story which ended up in several on-line publications. One example of the linguistic effectiveness of their effort is the emphasis on "overtime" in general, which could leave the impression to the uninformed that the DOL is going after the basic overtime rules, not just those that apply to individuals who hold executive, administrative, professional or other white collar exemptions.

At least they spelled her name right. Marie Mattox gets mostly favorable comments on her career representing employees in the Tallahassee area in this story from the Tallahassee Democrat aptly headlined Lawyer on a mission.

The AP story in the Times Picayune of a jury verdict doesn't qualify for the Million Dollar Verdict report, since it is only $500,000, but its unusual facts make it worth mentioning. Healthworks International, which distributes dietary supplements, the most well known of which are Go-Go Juice and Truckers Luv It. It now has another claim to fame having lost their second jury trial of religious discrimination claims. Rather than the usual allegation that an employer prohibited a religious practice of an employee, here the claim is that the employer discriminated against Michael Lee Johnson because he would not join the Apostolic Tabernacle Church.

And in a second irony, especially for those of us who generally think federal court is a better place for employment law suits, Johnson's wife's claim of religious discrimination was earlier tried in state court where she won $40,000. The appeals court decision [pdf] affirming the $40,000 verdict outlines some of the practices that she and her husband endured.

Sunday, 20 July 2003

Not exactly new news that questionable e-mails with pictures of nude women and dirty jokes can get employees in trouble. But the KOAT TV story, 9 At UNM Hospital Benched For Questionable E-Mails, must have left the HR department a little red faced since the only two named employees were from the HR department. And to make matters worse, although the nude picture was of Tiger Woods' girlfriend, the named culprits were female.

I don't know if this is a trend or not, something I will have to watch more carefully over the next few weeks, but it seems as if there is a long article each weekend discussing a particular employment law issue. A couple of weeks ago it was the opposition to the proposed wage and regulations on the white collar exemptions. This weeks' syndicated article which appears to have been highly distributed is from the Wall Street Journal's Joseph Pereira. His story which was in the Miami Sun-Sentinel paper among others, argues that disabled employees are frequently casualties of downsizing. Might check it out to see if it is an issue that might "ring true" among those gathering at the water cooler tomorrow.

From the Guardian comes a story on the dangers of workplace romance, with some sobering statistics from down under that 25% of office affairs end in sexual harassment cases. Might help to give them the odds when you are faced with skeptics about the downsides of a workplace fling.

Thursday, 17 July 2003

Hard to believe that the first post was July 17, 2002. Many posts later, hopefully these notes have proved of use to some. Having done it for one year, seems like I might as well stick around for awhile longer.

Wednesday, 16 July 2003

Thanks to benefitslink.com for this pointer to the DOL sponsored publication,A Non-Technical Resource Guide to the Uniformed Services Employment and Reemployment Rights Act. [pdf] With more employers faced with employees who have been called to active duty, its good to have an overview of an area that is quite technical. Also, since each overseas action seems to prompt some Congressional reaction to USERRA, generally in the form of liberalizing the benefits, it is probably not a good idea to rely on what you remember from after the last Gulf war.

The headline in the S.F. Chronicle, Cirque du Soleil accused of firing HIV-positive gymnast, tells the story. Clearly, Cirque du Soleil, the very popular modern day circus, was aware of the ADA since according to the article, the letter terminating the employee did so because he represented a "direct threat" to the safety of others. Although there aren't that many openings for acrobat catcher, if this case goes all the way through the courts, it could provide another chapter on what jobs, if any, are off limits to HIV positive employees.

A commentary from Llewellyn Rockwell of the Ludwig von Mises Institute, colorfully entitled How Government Protects Potential Workplace Killers argues that the Americans with Disabilities Act is forcing employers to tolerate dangerous individuals. Although the rhetoric seems somewhat overblown, there certainly can be a tension between compliance with the ADA and preventing violence in the workplace.

One of the requirements for a discrimination claim is that the employee suffered an adverse employment action. In Jones v. Reliant Energy - ARKLA the Court had difficulty finding one. The facts were that the Pine Bluff facility where Bridget Jones and a co-worker were employed was shut down. Before this, Jones had applied for and received a job as a Training Champion which required her to travel around the company training other employees. For a period Jones was based in Monticello but continued to live in Pine Bluff and commuted daily. Later, at her request, she was assigned to the Pine Bluff factory (which stayed open while the office was closed) for her base of operations. Jones remained employed at the time of her suit. When the Pine Bluff office closed down a co-worker (who was white, Jones was African American) was assigned to handle b/r claims out of the Little Rock office. Sometime thereafter that position was eliminated when all the positions for such claims were moved to Shreveport. The white employee was given a severance package.

Jones suit claimed that she had been discriminated against because she was not given the choice of a severance package or keeping her position. The Court noted it had held that neither failure to give severance benefits nor requiring an employee to relocate was an adverse employment action sufficient to make out a claim for discrimination. It was not inclined to now hold that "the failure to give an employee the option of choosing between two non-adverse employment actions - in other words, the employer's decision to make the choice itself - cannot transform the outcome into an adverse employment action." Holding otherwise would "lead to the absurd result that Jones suffered an adverse employment action because she was not fired." Fortunately, we are not yet to that day, at least in the 8th Circuit.

ADA claims are difficult to make but the third prong of the ADA definition, often referred to as perceived disability, may be an easier route for plaintiffs. In Ollie v. Titan Tire Co. (8th Cir. 7/15/03) when Ollie was turned down as a strike replacement for work in the warehouse because of his asthma, he lost his claim that he was actually disabled, but won because those involved in the hiring decision had perceived him as disabled.

In keeping with their normal practice, the company acted based on an oral report from the doctor's office where the post-offer, pre-employment physical was conducted. Here the report was, “The Examinee is medically able to do the essential functions of the job with accommodations listed below.” In the space below he wrote: “Pt. has asthma. May have difficulty in areas [with] dust or fumes.” What the person at the company wrote was, "“Asthma, no working where dust or fumes.” Concluding that everywhere in the warehouse would have dust or fumes, company personnel revoked the job offer.

Unfortunately for Titan, the difference between what the doctor said and what the employer wrote and acted on was enough to distinguish this from other cases where reliance on a doctor's restriction was sufficient to protect the employer. The appellate court did affirm the district court's rejection of the jury's award of punitive damages, but upheld the lower court's award of two years front pay based on the differential of what Ollie would have earned at Titan and what he was earning at the job he was able to get. Moral of the story: when rejecting on medical restrictions, be careful how broadly you view them.

Finally resolving a dispute that first reached the Court's attention shortly before the 2002 presidential election, the 2nd Circuit has now confirmed what it had foreshadowed in granting a stay of the lower court's ruling before the Congressional mid-term elections. It is a violation of the Hatch Act for the Postal Workers Union to post political posters in the non-public area of post offices supporting a candidate even if the candidate or a political party had no role in preparation of the materials. Burrus v. Vegliante (2nd Cir. 7/14/03).

Although many have viewed Microsoft's decision to abandon the use of stock options as the beginning of the end, others are not so sure. In today's Washington Post, Allen Sloan has another view in his column, Don't Write Obituary for Options Just Yet. But on the opposite side of the country, Kathy Kristof of the Los Angeles Times reports the differences between options and their replacement, restricted stock. Although you can spin the arguments either way, there is a lot that sounds good about trying to reorient the incentives.

Monday, 14 July 2003

You should check out the resources that have been gathered by the Labor Policy Association at their Codes of Conduct.com website. They have examples from corporations, industries and educational institutions among others.

In Back v. Danka Corp. (8th Cir. 7/14/03), it was conceded that Black did not submit a written application for severance pay as required by the company's ERISA plan. Neither was it disputed that he had never been given a copy of the severance plan, nor a summary plan description. When he filed suit, the lower court holding that he now knew about the requirement and still had not undertaken it, dismissed his suit for failure to exhaust administrative remedies. The Appeals Court reversed, holding that failure to give Black the notice of the requirement in advance was itself a violation of ERISA, and that there should be some "substantial consequence" for the company's failure to do so. The dismissal was reversed and sent back to the lower court for a determination on the merits.

Well technically "an effective and concrete intrusion into the sexual sphere of the victim'' is what the week end story in the Edmonton Journal quoted the Italian high court calling the crime of a "serial bottom pincher" who was given a 14 month suspended sentence after a 20 year old objected to his favors. This reversed a two year old ruling which had been strongly criticized which had excused such conduct as long as it was a "single incident". Although not a workplace ruling, this evidence of change in view in a country where such behavior has come to be regarded as stereotypical, has to be a step forward for civilized conduct in the world in general.

Friday, 11 July 2003

Although hinting that very little should be read into its decision since it was simply reversing the granting of a Motion to Dismiss on the Pleadings, the 2nd Circuit both joined the 11th Circuit in taking a very broad view of the participation clause for protected activity under Title VII, and held that a claim of national origin with the EEOC was also broad enough to cover racial discrimination Deravin v. Kereik (2nd Cir. 7/11/03). Here the plaintiff alleged he had been denied a promotion because of his participation into the investigation of a sexual harassment claim made against him. Noting that there was a difference between punishing him for his "participation" as opposed to the underlying conduct, the Court found that his claim could not be dismissed on the pleadings alone.

The AP reports on a 213-210 vote to reject an amendment that would have prevented the Department of Labor from moving forward with its proposed revamping of the white collar regulations which are strongly opposed by the unions. The amendment would have blocked any DOL regulation that would eliminate overtime for any employee who is currently receiving it.

The KnoxNews website has the story of a jury's award in a case where a female employee alleged she was terminated after she complained when she was denied a promotion following a co-employee's transfer. That employee was also a plaintiff as he alleged he was terminated when he told the employer that if he were called to testify he would have to say she was denied the job because of sex discrimination. Although each plaintiff was awarded punitive damages of $600,000, those will be likely be reduced to $50,000 each because of the punitive damage caps under Title VII.

In the "with 20/20 hindsight, probably not a good trial strategy" category, the jury rejected the employer's counterclaim against the two that they had plotted together to make bogus discrimination claims.

The modern world of computer forensics was front and center in yesterday's decision in Columbia Valley Regional Medical Center v. Bannert (Tx. App. - Corpus Christi 7/10/03). At issue was the authorship of a document, allegedly a memo to the hospital CEO written by the Chief Nursing Officer laying out a secret plan which would lead to the discharge and discrediting of Bannert, one of the senior nurse managers in the hospital. In reversing the jury's determination that the secret memo was defamatory, and setting aside its award of $1.5 million, the Court found that in context the memo stated only opinion, not fact; and that it was not defamatory. Although not saying it quite so bluntly, the Court in effect found that the hospital did not say negative things about Bannert, but rather good things, and it was because of the good aspects of her performance that the secret plan to undermine and discredit her was going to be necessary.

That argument might not have been as appealing to the Court if it had not also found that their was no evidence that the CNO had written the "secret memo". Although dated 9/1, it was supposedly found by one of Bannert's subordinates on the hospital's main system on November 12. However, an investigation by the IT department of the hospital and experts for both sides at trial, concluded that the document was not placed on the hospital system until November 15th. Furthermore, the two testifying experts agreed that its path was from the computer of Bannert's subordinate who found it, to the computer of Bannert and then to the shared drive of the hospital. Although supposedly from the CNO, who vehemently denied writing it, there was no tie to any computer linked to her. The only support for the jury's verdict that it was authored by the CNO was the plaintiff's expert's conclusion that since there had been some confusion in producing computers for examination by the experts, he felt that the hospital had been trying to "pull a fast one" and that therefore the memo must have been written by the CNO. Noting that conclusion was contrary to any of his actual findings, the court held that there was no evidence to support the CNO was the author of the document, and thus no evidence to support the verdict.

This is a good case to read to see why employment law is so often interesting from a factual standpoint. It is also a reminder of how high the stakes can be. Finally it provides a word of caution to anyone who might try to 'fake' computer information, about the actual trail that computer files leave.

Wednesday, 9 July 2003

The fear of having to try multiple cases is one that haunts defense lawyers in a discrimination case, and fortunately bothers most trial judges as well. In Manuel v. City of Chicago (7th Cir. 7/9/03) [pdf], the trial court granted defendant's motion in limine to preclude a fellow employee testifying that she had been mistreated by the supervisor in question and that she felt he was a racist. Defense counsel nearly went too far when he asked the following:

Q. Have you ever treated Josephine Manuel differently because she’s an African American?

A. No.

Q. Have you ever treated anyone differently at Fleet

Management because they are African American?

A. No.

Fortunately, for counsel, the appeals court view is that even after the door was opened, which it certainly was, the trial court's ability to use its discretion and weigh the probative value versus the dangers as set out in Rule 403, such as prejudice, confusion etc. continued. Here, the court did not find the court had abused that discretion in not allowing the open door to permit plaintiff to go into the supervisor's treatment of others. A good example of how there was almost one question too many.

Senator Charles Schumer (D - NY) is the latest to weigh in against the proposed regulations that would modernize the white collar exemptions. The Newsday article reports on Schumer's view of the impact on New York workers. The DOL has disputed his view as inaccurate and SHRM continues to voice its strong approval. Although some Republican congressional members have expressed discomfort with the proposals, it seems unlikely that there will be enough to make the DOL back off unless it really becomes a hot political issue. Still one would have thought that a Republican Congress would have been able to move forward with compensatory time off for private sector employers, but that proved unmanageable, so employers should not count the reforms as a given, even though they make sense.

The Philadelphia Inquirer story takes a bigger picture view of what the allegations that Enron employees were encouraged/required or lied to in order to have them keep their 401(k) plans heavily invested in company stock may mean. Proposed legislative changes and a rising number of class action suits challenging employers' could have the perverse effect of making 401(k) plans less attractive to employers.

And according to the Law.com article from Laurie Cunningham of the Miami Daily Business Review, since the complaint was not filed within the short 90 day statute of limations provided in the federal statute, it is now barred. This shouldn't have any applicability to the whistleblower provisions in Sarbanes Oxley, even though it adopts the procedural aspects of the aviation whistleblower statute. Section 806(d) of Sarbanes Oxley, the civil whistleblower cause of action, expressly preserves any other protection that an employee might have under any other federal law, state law or collective bargaining agreement.

The Asheville, N.C. Citizen-Times story uses yesterday's tragic shootings in Mississippi as a reminder to employers that under certain circumstances and under the law of certain states, an employer can have responsibility when an employee turns violent. Texas has dealt with exemplary damages for the criminal act of an employee in the Civil Practice and Remedies Code:

41.005. Harm Resulting From Criminal Act

(a) In an action arising from harm resulting from an assault, theft, or other criminal act, a court may not award exemplary damages against a defendant because of the criminal act of another.

(b) The exemption provided by Subsection (a) does not apply if:

(1) the criminal act was committed by an employee of the defendant;

...

(c) In an action arising out of a criminal act committed by an employee, the employer may be liable for punitive damages but only if:

(1) the principal authorized the doing and the manner of the act;

(2) the agent was unfit and the principal acted with malice in employing or retaining him;

(3) the agent was employed in a managerial capacity and was acting in the scope of employment; or

(4) the employer or a manager of the employer ratified or approved the act.

Microsoft stock options which in the distant past made many millions, have not worked as well in the last few years because of market conditions. Recognizing that, Microsoft will now give stock rather than options to employees, albeit a diminished amount. The wire service story carried in the Austin American Statesman notes local option king, Dell, is not yet commenting on its course. It will be interesting to see whether this is a watershed change or a one off. As might be expected the Corporate Law Blog has a more detailed report of what this means.

When the pro se plaintiff had maintained in the district court that her only contact with the EEOC within the 300 day time for filing a charge, her initial letter, was an inquiry, not a charge, her appointed appellate counsel's plea that it be considered as a charge was too late. Also the court failed to apply equitable tolling given that she had not diligently followed the EEOC's direction that a charge within 300 days was required. Zerilli-Edelglass v. New York City Transit Authority (2nd Cir. July 7, 2003) [pdf]. Even if she had overcome those hurdles, her complaint was mailed on the 89th day after her receipt of her 90 day right to sue letter and was not received by the court until the 92nd day. Like the court below, having found her initial charge untimely, the court did not even address her argument that the 90 days should also be equitably tolled.

In reviewing the decision by the district court the 2nd Circuit applied an abuse of discretion standard, but qualified it with the following footnote: 6 We are mindful that in South v. Saab Cars USA, Inc., 28 F.3d 9 (2d Cir. 1994), we indicated that the standard of review was de novo. That holding was inconsistent with the cases cited in the text. Accordingly, we have circulated a draft of this opinion to all active members of the Court prior to its publication. No active judge sought en banc consideration of the case. I also note that the original opinion was released on June 17, and the opinion of July 7 was for errata. Whether the footnote is as unusual as it seems to me, or is related to the errata, I will leave to the appellate folks like Howard Bashman and his readers at How Appealing.

Tuesday, 8 July 2003

What a horrible lead to this tragic story from the Atlanta Journal-Constitution. The latest tally is six dead, including the shooter. The worst workplace violence in 2 1/2 years. What may be even worse, according to a New York Times story, the shooter left an ethics and sensitivity training session and returned with a gun.

Here comes this headline from CNN, Six dead in Mississippi factory shooting . Details to follow, but odds are that the murder spree which ended with the shooter's suicide had its spark either from a workplace incident or a domestic dispute.

Monday, 7 July 2003

If it weren't for the personal tragedy that I am sure is involved, the facts in today's 2-1 decision by the Fifth Circuit, Williams v. IBEW Local 520, would be laughable. Williams, an open shop electrical contractor was "salted" by Local 520 of the IBEW as he was preparing for a large commercial project. Salting was defined in his brief as "union workers concealing their union membership, applying for non-union jobs, and then demanding union level compensation from the employer." When work was about to begin on the project, the union members revealed their union membership and demanded union rates. Since he had bid the job using non-union wages, he was not able to meet their demands and they went on strike. Unable to hire non-union electricians, and in order to salvage the job, he signed a CBA with the union which required him to use the union hiring hall exclusively. After more trouble with the union he unilaterally began hiring non-union electricians. A grievance was filed by the Union and he was found to have violated the CBA. Ultimately an agreed judgment was entered which required him to use the union hiring hall exclusively and submit his records to an audit. The audit showed he owed approximately $160,000 in back wages. In order to avoid the CBA Williams planned to do only residential work, but when that work dried up, in order to save his business he purposefully did 2 commercial jobs without complying with either the CBA, or the agreed judgment, by once again hiring non-union workers. Hauled back into court he was found in contempt and found to owe another $110,000.

He and his wife filed Chapter 13 bankruptcy, which was soon converted to Chapter 7. Not content to have forced him into liquidation, Local 520 contested the dischargability of his debts. The bankruptcy judge, the district judge and one Court of Appeals judge agreed with the Union that the debts were nondischargeable. Fortunately for Williams, two of the judges on the appeals court panel at least gave him a break, finding that while the $110,000 debt was not dischargeable, the $160,000 debt was. The difference has to do in their interpretation of the bankruptcy provision which hinges on whether or not his actions were "wilful and malicious." While he might not have known that his breach of the CBA was to sure to cause harm to the union in the first instance; once he was told by a court that his conduct was improper, as a matter of law his actions were wilful and malicious.

Obviously, the IBEW was acting 'legally', and I am sure their actions were justified at least to themselves; still it is hard to see how many, except perhaps lawyers, ultimately benefitted from this pyrrhic victory.

Maybe so big that it shouldn't be certified as a class action for just that reason, or at least that's one of the arguments that Wal-Mart is making according to an article in Fortune, Women vs. Wal-Mart. One story taken from testimony of the chief of Wal-Mart's U.S. stores is telling, both for the view of top management and the difficulty of making it work:

During a meeting last October, Tom Coughlin, the chief of Wal-Mart's U.S. stores, looked out at a room full of division heads and top line managers and saw that something wasn't right. He rearranged the room, asking people to sit by gender and ethnicity so that they could see what he saw: a whole bunch of white men.

Although the company has gone a long way in changing its reputation as an employer, any time you have as many employees as Wal-Mart, there is no way that you are not going to be subject to serious challenge to at least some of your practices on a regular basis. No matter how well intentioned those at the top.

William O'Shea's column today is about a topic that seems tailor made for this blog, Blogs in the Workplace. (free registration required). Haven't checked the Daily Whirl today, but I am assuming that a number of other bloggers have picked this one up.

Sunday, 6 July 2003

But Karen Rives has a story at the News Observer website with some good examples, as well as an admonition on actions employers can take to make things better in uncertain times. The answer almost always is communicate, and then communicate even more.

If the main complaint is by individuals making over $65,000 a year that they are no longer going to be entitled to overtime, which is the thrust of Sunday's story in the King County Journal, I don't think there is going to be a lot of traction for the objections.

Saturday, 5 July 2003

The Rochester Democrat & Chronicle reports on a new type of employee health benefit, "consumer driven" being tried by 3,000 employees at Xerox. Given the importance of health benefits, and their increasing cost, its good to see new approaches being tried, and worth keeping an eye on them.

Although not covered by Sarbanes-Oxley or other legislation, a number of companies are focusing on yet another potential conflict of interests, human resource consulting firms who have contracts with the company and then are asked to consult with the Board on appropriate compensation for the company's executives. Rachel Beck, an AP business writer has the story with some recommendations to avoid the problem.

This is probably the type of question that the author of the article mentioned in the last post had in mind. Problems in the Coal Mining division of MSHA have led to charges and counter-charges according to the story in the Beckley, W.V. Register Herald.

Whistleblowers are the rage, but there is another side as well. Douglas Seaton has some thoughts on that in his story in the Minneapolis Star-Tribune. Rather than give them unbridled acceptance, he suggests some questions that should be asked before accepting their allegations wholesale.

Thursday, 3 July 2003

In a lengthy opinion on situations involving shared employment and its interaction with workers compensation, the Supreme Court rejects lower court holdings that there could only be one employer for purposes of workers compensation. Wingfoot Enterprises v. Alvarado (Tx 7/3/03). Wingfoot was a supplier of temporary labor to Web Manufacturing. Alvarado was hired by Wingfoot and was assigned to Web. She suffered an injury to her fingers and sued both. Wingfoot got summary judgment that it was her employer for workers compensation purposes. At trial, Web received a favorable jury finding that it was Alvarado's employer and judgment was entered for Web based on the workers compensation bar. Alvarado appealed only the summary judgment, not the finding in favor of Web. The Court assumed that Web was an employer for workers compensation purposes, but held there was nothing in the workers compensation statute that would preclude Wingfoot from also being an employer. The Court did, as a matter of "prudence", list a number of situations that have been previously been decided by courts of appeal involving other similar situations and saying that they were different from the issue presented here.

The First Court of Appeals gives a good overview of the law on an employee's obligations when preparing to compete with his employer. In Abetter Trucking Company v. Arizpe (Ct. App. - Houston [1st] 7/3/03) it upholds a jury verdict that the employee did not breach his fiduciary duty to his employer, even though he resigned and a dozen of the company's drivers went to work for him at his new company the next day.

But this Workforce article makes a good point about what often happens with legal based training. In responding to corporation's efforts to comply with a myriad of regulations, an alternative to focusing on the details of the law is to focus on behaviors, and skills to accomplish those behaviors, that are likely to leave the individual (and the company) in compliance. Makes sense to me. Maybe even a lawyer could do it, or at least some lawyers.

James Lileks is a humor columnist (syndicated) for the Minneapolis Star-Tribune. As a card carrying journalist (although he maintains he isn't a journalist), that means he is a member of the Newspaper Guild - CWA. In yesterday's,The Bleat, found on his personal website, he says a lot about the modern day labor movement in complaining that it is unfair for the newspaper union to have the world's worst newspaper. But he says it with, well yes, a great deal of humor.

The Fifth Circuit affirms a lower court's ruling that Administaff, which it referred to as operating as an "off-site human resources department", was not liable for the WARN Act violation of its customer, a men's clothing production facility in New Jersey which shut down without giving 60 days notice. Administaff had no role in the decision to shut down, and in fact did not know of it until after the fact. Judge Edith Jones found that under the plain language of the statute, Administaff was not liable since it was not an employer who "order[ed] a plant closing." Administaff Companies, Inc. v. New York Joint Board (5th Cir. 7/1/03) [pdf]. The Court also supported the district court's grounds for summary judgment, that the DOL five point test for a joint employer was the appropriate test under WARN and under that test Administaff was not an employer.

The Cincinatti Enquirer reports on a new technology that supposedly can be used for determining prior drug use. DrugWipe purports to be able to detect drug use by testing surfaces used on a regular basis or even swiping the skin of a person. Since the market for a non-invasive, easy to use, accurate drug test would be immense, you can be sure that if the product meets those three standards it will be a winner. But meeting the three is the key and changing the minds of all those wed to urine drug testing will not be easy.

Unemployment insurance is not a big subject for employment lawyers, but it is a big concern of employers. An article by Marsha Richards in the Seattle Post Intelligencer explains what has been happening in Washington state and some of the reasons unemployment insurance has become such an issue for employers everywhere.

Telecommuting, a concept that seems more talked about than acted on, does have novel problems. When a telecommuter living (and thus working) in Florida, for a New York based company wants to file for unemployment, which state will pay? Maybe neither. At least that's what happened to a Reuters employee. The AP Wire has the story on the decision by the New York top court upholding the denial of her benefits, saying under New York law it is the place of the employee, not the employer that controls for unemployment. The reason she applied in New York was that she had earlier been turned down by Florida.

To make matters worse, according to the opinion in Allen v. Commissioner of Labor, Allen who represented herself, is required to repay the amounts she received in unemployment from New York because she made a "false statement" when she said that she worked at the New York address of her employer. Even "unintentional" false statements, which is how the court apparently viewed this one, require repayment.

Although this particular fact situation is not very appealing, the Court noted it was deciding a case of first impression and was interpreting its statute which is based on a uniform statute, so it is similar to those adopted by other states in an effort to ensure uniformity. The definition in the statute puts the emphasis on the locality of the work with the reasoning being that the state where the employee is physically present to obtain new work should pay. Even the Court concedes that the idea of an interstate telecommuter was never contemplated when the unemployment laws were drafted, but at least in its view, the principles articulated there still work. Ms. Allen no doubt would beg to differ.

Wal-Mart will expand its non-discrimination policy to include sexual orientation according to news reports, including Reuters. This is part of a growing trend among 'big business'. This may be one of the few cases where the business world is outpacing the political on an employment law issue.

Tuesday, 1 July 2003

Everyone agrees that for those of us who represent corporations in jury trials, the "Enron" issue is a major problem. But what exactly does that mean? Check out the views of some trial consultants in Post-Enron Jury Perceptions and What to Do About Them, originally published in the American Corporate Counsel Association Journal.

Douglas Shuit's story in Workforce details some of the litigation that has engulfed UnumProvident over denials of disability policies. According to the company, only 1% of claims are denied, but a large verdict in Arizona and a fine by the Georgia Department of Insurance have made them a more attractive target. UnumProvident is now having to fight on several fronts - the courtroom, the media and the stock market as their stock price has had a precipitous decline. Probably worth reading and following, particularly if your company has their disability coverage.

Blows to the scrotum on three or four occasions, accompanied by laughter reminds me of 7th grade behavior. Here the bully resigned, the victim didn't get fired and both the district court and appeals court (wisely in my opinion) held it was not enough to show gender harassment. Linville v. Sears (8th Cir. 6/30/03) [pdf]. It is amazing that the judicial system has to spend this much time on a case like this.

In Rocafort v. IBM, the 1st Circuit affirms a summary judgment on an ADA claim brought by an individual who suffered anxiety attacks, including the fear that he was going to be terminated on his return to work. He also sought to raise a hostile environment claim. Saying the law was unsettled in the 1st Circuit on that issue, the court rather than addressing it found Rocafort had waived it by not raising it below. For those who might see this as just another case where the employer wins an ADA case, should review the facts carefully for the efforts, time and expense that IBM spent on an employee who was certainly not being productive.